Equitable Balancing in the Age of Statutes examines the application of the doctrine of equitable balancing in determining whether to issue injunctions for violations of federal statutes. For the past several decades, the Supreme Court has held that the decision whether to enjoin violations of federal laws ordinarily should be determined by “balancing the equities,” in which courts weigh the hardship that the plaintiffs would face if an injunction were denied against the hardship the defendants would face if an injunction were granted. The Court has justified the doctrine by declaring that it is a longstanding equitable practice dating back centuries, perhaps since time immemorial. The Court most recently applied the doctrine in Winter v. Natural Resources Defense Council, 129 S.Ct. 365 (2008), in which environmentalists sought to enjoin the Navy from conducting antisubmarine training exercises using a type of sonar system alleged to be harmful to whales. The Court held that, even if the Navy was acting in violation of federal law, no injunction should be issued because, as the Court saw the balance of equities, national security trumps environmental protection.
The Article argues that the Supreme Court’s experiment in applying equitable balancing in statutory contexts should be abandoned because it conflicts with separation-of-powers principles. The Article seeks to debunk the Court’s premise for applying equitable balancing in statutory cases——that the doctrine has been part of equitable practice for many centuries. In fact, equitable balancing is a relatively modern phenomenon, which first appeared in state common law cases during the period of rapid industrialization following the Civil War, and it only gained general acceptance in the 1930s. It was adopted for the express purpose of expanding judicial discretion to protect industries against injunctions in nuisance actions to stop air and water pollution. History is repeating itself because the Supreme Court adopted equitable balancing in federal statutory cases, beginning in 1982, to expand judicial discretion to excuse violations of federal statutes when, in the courts’ judgment, countervailing policy interests outweigh the interests served by federal statutes. Once equitable balancing is recognized as a recent phenomenon adopted to enlarge judicial policymaking authority, it becomes apparent that applying the doctrine in federal statutory cases raises substantial unresolved separation-of-powers problems. Among other things, the doctrine allows, if not requires, that courts make ad hoc assessments of the relative importance of apparently conflicting statutory policies.